Alan Dershowitz on Being Wrong, Part I: Lawyers, Pundits, Error, and Evil

What it means to make mistakes.
May 12 2010 5:41 PM

Alan Dershowitz on Being Wrong, Part I: Lawyers, Pundits, Error, and Evil

As a criminal appellate attorney, Alan Dershowitz has represented, largely successfully, some of the most notorious defendants of the 20th century: O.J. Simpson, Mike Tyson, Claus von Bulow, Leona Helmsley, Patty Hearst, Jim Bakker, and Michael Milken, to name a few. As a political commentator, he is an outspoken backer of Israel who has fiercely questioned the left's support for Palestine. More recently, he has attracted controversy for advocating the use of a "torture warrant" to regulate (or license, depending on your perspective) the use of torture.

/blogs/thewrongstuff/2010/05/12/alan_dershowitz_on_being_wrong_part_i_lawyers_pundits_error_and_evil/jcr:content/body/slate_image

Talking to Dershowitz about wrongness reminded me of a counterintuitive claim about the nature of certainty. Certainty, this claim holds, is merely a product of social interaction. In the privacy of our own minds, we treat every proposition probabilistically: Hypothesis X has Y odds of being true. It is only when we must communicate with others that we abandon this state of chronic doubt and generate absolutes. Put differently, it is only in writing a book, teaching a class, arguing a lawsuit, or appearing on Larry King that we commit to a cause.

Advertisement

If true, this theory helps explain the paradox of Alan Dershowitz. In the public sphere, he is widely regarded as an unyielding defender of inflammatory beliefs. Yet he is also a connoisseur of error: He believes all of common law emerged from mistakes and has written two books on the relationship between wrongness and rights. (You can read Part II of this interview, a conversation about the role of error in the origins and structure of the American legal system, here .)  Unsurprisingly, he had a lot to say about wrongness: his own, his students', his political adversaries', even mine.

Do you think lawyers have an unusually hard time admitting that they're wrong?

Oh, yeah. I think that lawyers are terrible at admitting that they're wrong. And not just admitting it; also realizing it. Most lawyers are very successful, and they think that because they're making money and people think well of them, they must be doing everything right.

I have the same experience with criminals. People ask me all the time, how could X, who's so rich and so successful, how could he or in [the late real estate and hotel billionaire Leona] Helmsley's case, how could she have been willing to expose herself to prison for a mere million dollars [in tax evasion] when she had three billion in the bank? And the answer is always the same. They didn't just slip this time. They've been doing this since they were kids, and this is the time they got caught. People who have been successful criminals or successful lawyers just do the same thing over and over again, without understanding that at least some of the things they're doing are mistakes.

Well, you're a successful lawyer, to put it mildly. Are you failing to recognize and learn from your mistakes?

I worry about it. That's why I always have young people around me; I insist on my students and the people who work with me telling me about my mistakes. And I think I learn from them.

Isn't your students' ability to confront you on mistakes rather compromised? You're the professor, the hot-shot lawyer, the one with all the experience and all the power, not to mention the one who gives out the grades.

That's not true at Harvard, for a couple of reasons. Number one, all grading is blind grading. Number two, students are taught to be assertive, and correcting the teacher is seen as a good thing, at least these days.

Also, I'm out there publicly and I'm very controversial; my e-mail is filled with people calling me terrible things and correcting all of my errors, including ones I haven't committed. So I'm getting negative feedback all the time.

Can you give me some examples of instances where you've been wrong?

I had an experience early in my career where I was working with a young woman who insisted on putting an argument in the brief. I thought the argument sucked and I didn't want to put it in the brief, and she said, "Well, you're the boss." I said, "No, that's not the way we do things. You're going to persuade me to do or it you going to persuade me not to do it." She ultimately didn't persuade me, but she came so close and she was so committed to the argument that I actually put it into the brief very reluctantly. I really thought I was making a mistake. And we ended up winning the case on that argument. I was just dead wrong and she was completely right.

That's an example from your life as a trial lawyer. What about your life as a political commentator? It's one thing to admit that you were wrong about a tactical issue which argument to use in which case, say. But what about your overarching political positions? Do you think about being wrong about those?

Of course. And I've changed my mind on a few issues. I was critical of race-based affirmative action early on in my career and I've changed my mind. And I've publicly acknowledged that I was wrong.

On torture, people misunderstand my views. I'm against torture, but I'm in favor of a torture warrant, which means I believe it [torture] will happen even though I'm against it, so I favor accountability. I've been having that debate now for, what, two or three years, and I have not changed my mind up until now, although I understand the other side of the position very, very well, and for me it's a close question. But all my life has been about accountability and not making decisions beneath the surface, and that's why it so important for me to recognize that we do terrible things, and that when we do them, we have to do them openly and we have to have accountability rather than deniability.

What made you change your mind on affirmative action?

I've seen it work. I've seen students who would not be admitted on just a colorblind basis who have done so extraordinarily well and have contributed so much to the life of the university and the law school that I realized that the principle was being overwhelmed by the reality. And, you know, I'm a pragmatist. I learn from experience.

That's interesting, because many people regard you as extraordinarily entrenched and inflexible in your political positions in other words, as someone who's convinced that he's right. How do you feel about that characterization?

First of all, there's some basis for it, because when I'm acting as a lawyer, I can't change my mind. I have a client. Nothing that the prosecution says will cause me to change my mind, because I have an obligation to defend my client whether he's wrong or right. But as a public intellectual, I have an obligation to keep an open mind, and I think I do. I understand that it's good tactics to categorize me as a close-minded, unobjective extremist, but nobody that respects me has those views.

The lawyerly obligation to not change your mind, to defend a position right or wrong do you find that it seeps over into the rest of your life?

No, it doesn't because I'm a professor first, and as a professor I'm always changing my mind. I mean, my students go crazy in my class because I'm the most orthodox Bayesian in the world. [Bayesian probability theory is a way of modeling how the human mind reasons about the world. It assumes that people have prior beliefs about the probability of a given hypothesis and also beliefs about the probability that the hypothesis, if true, would generate the evidence they see. Taken together, these beliefs determine how people update their faith in a hypothesis in light of new evidence.] I do everything based on Bayes analysis, and Bayes analysis is always based on shifting probabilities and constantly changing and being adaptive and fluid.

So can you imagine changing your mind on the issues you're currently most closely associated with? On torture? On the Middle East? What would it take for that to happen?

Sure. I mean, on torture I could easily change my mind, because that argument is largely an empirical one. If my approach produced more torture rather than less torture, I would change my mind.

I would find it very hard to change my views on the Middle East in general. I've been very critical of some Israeli actions: At the end of the Lebanon War where they used cluster bombs. I criticized that, and I criticized the use of phosphorus in Gaza. But about the two-state solution, about Israel's right to exist as a Jewish democracy I think that's too deeply part of me. This is a view I've had since I was 10 years old. I don't see myself changing it. I'm against the settlements, I'm in favor of a divided Jerusalem, I support a two-state solution, so I think of myself as moderate. I'm considered an extremist because people like Noam Chomsky are considered moderates. I'm not becoming a Chomsky.

So what do you make of Chomsky and the many other people who disagree with you on Israel? Obviously they think they're just as right as you do.

I think many of their reasons are more psychological than political. I think being Jewish is very, very complicated, and there are a lot of Jews who have to prove their self-worth by being willing to be critical of something very Jewish, namely the state of Israel. Obviously I look first for reasonable bases, but I often can't find them. So I look for psychological explanations. Because some of these positions, I cannot believe they could be based on any kind of rationality. When I look at the double standard by which Israel is judged in the world for instance, regarded by some as the worst human rights violator when it's clearly not you have to ask yourself what the psychological roots are.

So you're saying that your opponents' grounds for belief are psychological but yours are rational? What makes you think yours aren't psychological, too?

It's always possible. But I've studied the situation very closely, and I think I'm prepared psychologically to be critical. I'm prepared psychologically to do what I think is the right thing on Israel. I've thought hard about my psychological connections and I think I've managed to separate out the psychological from the legal, moral, and political. I don't think I'm hung up about my Jewishness. I'm not a religious person, my son is married to a person who's not Jewish, my grandchildren are half-Jewish, I'm not a synagogue attender, I'm not somebody who lives a particularly Jewish life, it's not a hang-up with me. I think I've thought through all the issues, I've written five books on the subject, moderate books. I think I've sorted through the issues and come to a reasonable conclusion.

Speaking of reasonableness, what do you think about the inflammatory rhetoric that tends to accompany these hot-button issues? One of the things I write about in my book is the ease with which we slide from believing that people who disagree with us are wrong to believing they're ignorant, idiotic, or evil.

I think it's a terrible approach. Certainly as a lawyer, I teach my students to respect their adversaries: They're sitting in class with you today, and tomorrow they're sitting on the opposite side of the courtroom. They're as smart as you are, they're as well-motivated as you are, they're as decent as you are, they're as open to new ideas as you are. The worst mistake you can make is underrating your enemy. Assuming that they're evil I think it's a terrible thing to do.

That's in the law. What about as a pundit? You've done it yourself, in that context.

Not idiotic. I don't characterize people who disagree with me as idiotic. Evil I use the word evil a lot. I like it. I think Richard Goldstone is evil. I think Norman Finkelstein is evil. I don't shy away from those terms. There are evil people in the world.

Define it.

Evil people are people who knowingly engage in conduct that is done for selfish reasons that don't reflect reality. I think there are really, really evil people on both sides in the Middle East conflict. Those Jewish extremists who would engage in violence to preserve the settlements are evil.

[In a subsequent e-mail in which he asked me to clarify his remarks on evil, Derswhowitz wrote: "I just want to re-emphasize that I never call those who disagree with me about Israel "evil." Indeed I admire and learn from Palestinians like Sari Nuseiba and others. I reserve that term for those who compare Israel to Nazi Germany or accuse it of having the worst human rights record in the world. There is no rational basis for making such comparisons. They can be motivated only by an evil intent. And I call it as I see it without mincing words." ]

Are you saying that you think these people consciously work toward immoral ends? It's my experience that most people think they're on the side of the angels, just as you do.

I think some are motivated by entirely selfish reasons. Goldstone wants to be loved and adored by the international human rights community, he wants to be promoted, he wants to get teaching jobs. I think he's purely, purely selfishly motivated. He knows what he's doing, he's making a calculated decision. People like Chomsky I think are motivated by an ideological hated for anything centrist or liberal or moderate or American or Western. And then he's prepared to lie to support his views.

But is this a debate about Israel or are we talking about mistakes here?

We're talking about wrongness, but part of what interests me is how we treat people when we think we're right and they're wrong. For instance, you've accused some people you disagree with of "hating America," which seems awfully Sarah Palin-ish for such a smart guy.

I don't ever accuse anybody who disagree with me of hating America because they disagree with me. I accuse Noam Chomsky of hating America, because he says so. I disagree with Pat Buchanan, but I don't accuse him of hating America. I have a different view of him.

Ha. OK. Well, tell me this, on a different topic. You've written, in Letters to a Young Lawyer , about being wrong about people, including some of your legal heroes, and about the intense disappointment that caused you. What about your clients? Have you believed in a client and then realized that you were wrong?

Well, first of all, I start out assuming all my clients are guilty and all my clients are lying to me. That's my operating assumption as a good lawyer, just like any good doctor would start out believing that the chest pain is not indigestion but a coronary, or the patient who says he never smoked or used cocaine may be lying. So I have rarely been disappointed by my clients because I have rarely expected much of them.

On occasion, though, I have fallen for the charm of a client, and believed that maybe they were telling the truth only to learn that they weren't.

What was that like?

Oh, it was pretty awful. Unfortunately, I can't tell you who it is, but she was a kind of prominent woman client who clearly misled me, and it was very difficult. But in the end I should have seen it coming, and I faulted myself.

What would you say you've been most wrong about in your life?

I think it's about people. Being wrong about people, misjudging people, expecting too much of people that's the one that has the most devastating impact, because how you interact with people is very personal. Ideas don't desert you, ideas aren't treasonous to you, but people can be.

Is there a specific experience you can share?

No, I don't think so. But the other thing I could say has disappointed me is the left, and particularly the hard left. I'm thinking of writing a book called Why I Left the Left but Couldn't Join the Right . In that respect, I feel sometimes without a home, because I was a person of the left all the way through college, law school, my first years of teaching. Remember, I came of age during the Vietnam War, so the hard left and the civil liberties left didn't have anything to disagree about. But after Vietnam, when the issue moved from Asia to the Middle East, a sharp division arose between liberals who supported Israel and the hard left that vehemently hated Israel. That to me was a big disappointment that I should have anticipated and didn't.

Last question: If you could hear someone else interviewed about wrongness, who would it be?

Bill Clinton. I think he's made some of the most interesting mistakes.

Like what?

His most interesting mistake was who he picked to be his lawyer when he was about to be impeached. You know, he made a terrible, terrible choice and his lawyer got him into terrible, terrible trouble by putting him through a deposition about his sex life, which no reasonable lawyer would ever do.

To read Part II of the interview, click here .

Kathryn Schulz is the author of the forthcoming Being Wrong: Adventures in the Margin of Error . She can be reached at kathryn@beingwrongbook.com. You can follow her on Facebook here , and on Twitter here .

  Slate Plus
Slate Picks
Dec. 19 2014 4:15 PM What Happened at Slate This Week? Staff writer Lily Hay Newman shares what stories intrigued her at the magazine this week.